People v. Rios (1953) 46 Cal.2d 297, June 2014 LELR at Bonus p. 20. OK to arrest a person who admits the past commission of a crime. “From defendant’s admission that he had taken an injection of heroin two weeks before, it could be inferred that he had possessed heroin in violation of [then] Health and Safety Code section 11500.” 46 Cal.2d at p. 298.

People v. Burton (2013) 219 Cal.Ap.4th Supp. 9, May 2014 LELR at p. 2. Officers may arrest for a misdemeanor not committed in their presence so long as they have probable cause for the arrest.

People v. Adams (1985) 175 Cal.App.3d 855, March 2014 LELR at p. 7. Search valid as incident to an arrest when officer had probable cause to arrest even though he characterized his stop as a detention. “The fact defendant was not formally arrested until after the search does not invalidate the search if probable cause to arrest existed prior to the search and the search was substantially contemporaneous with the arrest.” 175 Cal.App.3d at p. 861.

BURGLARY

In re Gary F. (2014) 226 Cal.App.4th 1076, October 2014 LELR at p. 8. Outside lookout is guilty of residential burglary as an aider and abettor.

People v. Tessman (2014) 223 Cal.App.4th 1293, September 2014 at p. 3. A “for sale open house” is an inhabited dwelling. Entering a pawnshop to sell stolen goods is a burglary.

People v. Harris (2014) 224 Cal.App.4th 86, August 2014 LELR at p. 7. Attached garage is part of a residence even if no connecting door. “Occupant present” allegation applies even if burglar enters only the garage if an occupant is present in the residence. “There is no requirement of an interior connecting door before a room such as a garage may be treated as part of a residence. A garage sharing a roof and a wall with a residence is part of an inhabited dwelling even though there is no interior access. This is true even for multiunit structures.” 224 Cal.App.4th 86, interior cites omitted.

People v. Rocha (2013) 221 Cal.App.4th 1385, June 2014 LELR at p. 9. OK to introduce evidence of prior burglaries in present burglary case to show intent to steal. Many case examples given.

In re O.D. (2013) 221 Cal.App.4th 1001, April 2014 LELR at p. 20. A single fingerprint of defendant on window of burgled premises is sufficient for a burglary conviction. “Several cases have held that evidence of a fingerprint, palm print, or footprint left inside a structure or at a point of unusual access is alone sufficient to support a burglary conviction.” 221 Cal.App.4th at p. 1010.

People v. Brown (2014) 227 Cal.Ap.4th 451. November 2014 LELR at p. 14. Possession of a shotgun under 26 inches overall length is unlawful even if kept in personal residence.

DETENTION

United States v. Edwards (9th Cir. 2014) 761 F.3d 977, December 2014 LELR at p. 3. An anonymous 911 call justifies detention and patdown when contemporaneously reporting gunshots by a described suspect at a described location.

In re Frank V. (1991) 233 Cal.App.3d 1232, September 2014 LELR Bonus at p. 20. OK to order persons to show their hands during police contact.

People v. Turner (2013) 219 Cal.App.4th 151, April 2014 LELR at p. 13. OK to detain a man who threatened a high school coach and was said to be carrying a gun.

People v. Barnes (2013) 216 Cal.App.4th 1508, January 2014 LELR at p. 6. OK to use GPS tracking of stolen cellphone to locate and detain a suspected robbery. “The officers could certainly infer a reasonable possibility that if they could locate the phone they would also locate the robber.” 216 Cal.App.4th at p. 1520.

DETENTION AND DEMAND FOR IDENTIFICATION

Hiibel v. Sixth Judicial District of Nevada (2004) 542 U.S. 177, 159 L Ed 2d 292, November 2014 LELR at p. 3. Lawfully detained person must give name if relevant to circumstances of detention. Refusal to give name is violation of PC 148.

People v. Hajek and Vo (2014) 58 Cal.4th 1144, September 2014 LELR at p. 12. Tape recording of defendants’ conversation after arrest is admissible at trial even though portions of the recording are inaudible and unintelligible.

FELON WITH BODY ARMOR

In re Perdue (2013) 221 Cal.App.4th 1070, June 2014 LELR at p. 14. Felon in possession of body armor is a valid charge. Body armor is “any bullet resistant material intended to provide ballistic and trauma protection for the person wearing the body armor.” PC 31360 and PC 16288. This includes “hillbilly armor.”

People v. McCurdy (2014) 59 Cal.4th 1064, December 2014 LELR at p. 7. Invocation of Miranda rights must be unequivocal. Officers may interrogate a suspect who invoked his Miranda rights but then reinitiates conversation with officers.

People v. Tom (2014) 59 Cal.4th 1210, October 2014 LELR at p. 5. Post-arrest, pre-Miranda silence may be admissible at trial as evidence of guilt. Suspect spoke of many things but did not ask about victims of car crash.

People v. Hajek and Vo (2014) 58 Cal.4th 1144, September 2014 LELR at p. 12. Tape recording of defendants’ conversation after arrest is admissible at trial even though portions of the recording are inaudible and unintelligible.

People v. Davidson (2013) 221 Cal.App.4th 966, March 2014 LELR at p. 2. Brief on the scene questions do not require a Miranda admonishment. “Handcuffing a suspect during an investigative detention does not automatically make it a custodial interrogation for purposes of Miranda.” 221 Cal.App.4th at p. 972.

United States v. Botello-Rosales (9th Cir. 2013) 728 F.3d 865, January 2014 LELR at p. 2. Read Spanish language Miranda admonition off a card. Introduce the card into evidence in court. This will prevent possible mistranslation in court.

In re Kenneth S. (2005) 133 Cal.App.4th 54, January 2014 LELR Bonus at p. 19. Miranda does not apply if the suspect is told he is free to go. “But even a clear statement from an officer that the person under interrogation is a suspect is not, in itself, dispositive of the custody issue.” 133 Cal.App.4th at p. 64.

MISDEMEANORS

People v. Burton (2013) 219 Cal.Ap.4th Supp. 9, May 2014 LELR at p. 2. Officers may arrest for a misdemeanor not committed in their presence so long as they have probable cause for the arrest

NARCOTICS

People v. Bautista (2014) 223 Cal.App.4th 1096, June 2014 LELR at p. 6. 10.33 grams of heroin can be charged as possession for sale.

PAROLE VIOLATION

United States v. Hilger (9th Cir. 2013) 728 F.3d 947, January 2014 LELR at p. 10. An uncorroborated confession alone is a sufficient basis for a parole – or probation – violation. Parole and probation violations need be shown by a preponderance of evidence only, not by proof beyond a reasonable doubt.

POLICE USE OF DEADLY FORCE

Case law regarding police use of deadly force against a fleeing felon. September 2014 LELR at p. 15.

People v. Bernal (2013) 222 Cal.App.4th 512, May 2014 LELR at p. 7. Attempting to escape from an officer by forcibly pulling away from him is a violation of Penal Code section 69. Penal Code section 69 and Penal Code section 148 distinguished.

ROBBERY

People v. Burns (2009) 172 Cal.App.4th 1251, March 2014 LELR at p. 18. Purse snatch can be a robbery. “In this case, [defendant Burns] came up to [victim] and grabbed the purse she was holding; she tried to hold onto it but his strength and his act in stepping on her foot overcame her resistance, and he got away with the purse. That was robbery. . .” 172 Cal.App.4th at p. 1259.

SCHOOL SEARCHES

In re J. D. (2014) 225 Cal.App.4th 709. October 2014 LELR at p. 16. OK to search school lockers on report of gun use by student near campus.

New Jersey v. T.L.O. (1985) 469 U.S. 325, October 2014 Bonus at pp. 21 and 25. School search valid based upon reasonable suspicion search will turn up evidence of violation of law or rules of school. Exclusionary rule does not apply to school searches by school authorities including school police.

In re K.S. (2010) 183 Cal.App.4th 72. October 2014 LELR at p. 28. School official can search on reasonable suspicion even if a peace officer is present.

SEARCH AND SEIZURE

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, November 2014 LELR at p. 17. Defendant must show “standing” to object to a search. Disclaimer of ownership negates standing.

In re Frank V. (1991) 233 Cal.App.3d 1232, September 2014 LELR Bonus at p. 20. OK to order persons to show their hands during police contact.

United States v. King (9th Cir. 2013) 736 F.3d 805, April 2014 LELR at p. 9. Suspicionless search of suspect with a probation consent search condition is valid. This decision supersedes the prior decision in this case appearing in the September 2013 LELR.

Fernandez v. California (2014) 188 L Ed 2d 25, April 2014 LELR at p. 2. Co-occupant’s consent search is valid unless another co-occupant is present and objects. Many consent search cases discussed. This decision supersedes and reverses the prior decision on this case appearing in the January 2013 LELR.

People v. Adams (1985) 175 Cal.App.3d 855, March 2014 LELR at p. 7. Search valid as incident to an arrest when officer had probable cause to arrest even though he characterized his stop as a detention. “The fact defendant was not formally arrested until after the search does not invalidate the search if probable cause to arrest existed prior to the search and the search was substantially contemporaneous with the arrest.” 175 Cal.App.3d at p. 861.

United States v. Tosti (9th Cir. 2013) 733 F.3d 817, March 2014 LELR at p. 11. OK for officers to view pornography found by computer repairman. Wife can give consent to search home computer shared with husband. “It is well established that a person with common authority over property can consent to a search of that property without the permission of the other persons with whom he shares that authority.” 733 F.3d at p. 823. But if other person is present and denies consent to search, then a warrantless consent search cannot be conducted.

People v. Barnes (2013) 216 Cal.App.4th 1509, March 2014 LELR at p. 17. A defendant has no standing to object to the search of stolen property in his possession.

SEARCH WARRANTS

People v. Carrington (2009) 47 Cal.4th 145, November 2014 LELR at p. 22. Four principles of search warrant preparation and execution set forth. Probable cause to believe suspect committed a felony gives probable cause for a search warrant for his residence for fruits, evidence and instrumentalities of the felony.

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, November 2014 LELR at p. 17. Evidence of a murder is likely to be at suspect’s residence despite passage of one month. Warrant not “stale.”

Search Warrant for Deadly Weapon in Possession of a W & I Code section 5150 Detainee. Officers may obtain a search warrant for firearms and other deadly weapons in possession of a W & I Code section 5150 detainee. See Penal Code section 1524, subd.(a)(10). September 2014 LELR at p. 19.

TAMPERING WITH A CONSUMER PRODUCT

United States v. Lyle (9th Cir. 2014) 742 F.3d 434, June 2014 LELR at p. 17. Opening a box and removing product from it and then closing and regluing the now empty box and placing it back on the store shelf for sale is “tampering with a consumer product” in violation of 18 U.S. Code section 1365(a) when doing so places another person in danger of bodily injury.

TERRORIST ACTS

Terrorist Acts within the United States: The rules of detention and search and seizure would likely be relaxed in situations involving threats of terrorism and acts of terrorism. October 2014 LELR at p. 3.

THEFT

People v. Whitmer (2014) 59 Cal.4th 733, October 2014 LELR at p. 11. Multiple acts of theft can be charged as separate thefts even if pursuant to a single plan. Overrules contrary Court of Appeal cases.

People v. Suff (2014) 58 Cal.4th 1013, August 2014 LELR at p. 14. Car stopped at red light must signal before turning if another car is behind it. Also - “Both the approach for a right-hand turn and a right-hand turn shall be made as close as practicable to the right-hand curb or edge of the roadway.. . .” VC 22100, subd.(a).

VEHICLE PURSUITS

Plumhoff v. Rickard (2014) 188 L Ed 2d 1956, July 2014 LELR at p. 2. Officers may shoot fleeing dangerous driver. “A police officer’s attempt to terminate a dangerous high-speed chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Slip Opinion at pp. 9-10. “Under the circumstances at the moment when the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road.” Slip Opinion at p. 10. See also Scott v. Harris, below.

People v. Suff (2014) 58 Cal.4th 1013, August 2014 LELR at p. 14. Car stopped at red light must signal before during if another car is behind it. Also - “Both the approach for a right-hand turn and a right-hand turn shall be made as close as practicable to the right-hand curb or edge of the roadway.. . .” VC 22100, subd.(a).

People v. Waxler (2014) 224 Cal.App.4th 712, August 2014 LELR at p. 10. OK to search a car based upon a burnt marijuana odor despite driver having a marijuana prescription card. See also People v. Strasburg, below.

People v. Strasburg (2007) 148 Cal.App.4th 1052, August 2014 LELR at Bonus p. 20. OK to search a car based upon the odor of burning marijuana despite driver having a medical marijuana card. “An officer with probable cause to search is not prevented from doing so by someone presenting a medical marijuana card or a marijuana prescription. Given the probable cause here, the officer is entitled to continue to search and investigate, and determine whether the subject of the investigation is in fact possessing the marijuana for personal medical needs, and is adhering to the eight-ounce limit on possession.” 148 Cal.App.4th at p. 1060.

Navarette v. California (2014) 188 L Ed 2d 680, May 2014 LELR at p. 12. OK to traffic stop a car based upon an anonymous 911 caller’s report of an erratic driver. See also People v. Wells, below.

People v. Wells (2006) 38 Cal.4th 1078, May 2014 Bonus at p. 17. OK to traffic stop a car based upon an anonymous call reporting erratic driving. Officer need not see erratic driving himself. See also Lowry v. Gutierrez (2005) 129 Cal.App.4th 926, appearing in the October 2005 LELR. (end)

INDEX TO VOLUME 37 (2013) OF
LAW ENFORCEMENT
LEGAL REPORTER (LELR)

ACCESSORY

People v. Nuckles (2013) 56 Cal.4th 601, August 2013 LELE at p. 8. Person who aids absconding parolee’s escape or hiding out is chargeable as an accessory – PC 32.

ASSAULT WITH A DEADLY WEAPON

People v. Aznavoleh (2012) 210 Cal.App.4th 1181, April 2013 LELR at p. 9. A street racer who crashes and causes injury has committed assault with a deadly weapon. “The primary issue in this case is whether a driver who deliberately races through a red light at a busy intersection and collides with another vehicle, causing injury to another, can be convicted of assault with a deadly weapon. The answer is yes.” 210 Cal..App.4th at p. 1183.

People v. Brown (2012) 210 Cal.App.4th 1, March 2013 LELR at p. 12. A BB gun can be a deadly weapon.

BAIL

Penal Code section 1275.1, June 2013 LELR at p. 19. PC 1275.1 sets forth a procedure whereby a defendant must prove that any money used to post bail or purchase a bail bond was not feloniously obtained.

“BASH MOB” CRIMES

Crimes typically committed by members of a bash mob are listed.

BOOKING PROCEDURES - DNA

Maryland v. King (2013) 186 L Ed 2d 1, July 2013 LELR at p. 16. Collection of DNA buccal sample at booking of felony arrestees is constitutional. The California buccal sample collection law was found to be constitutional by the California Court of Appeal in the case of People v. King (2000) 82 Cal.App.4th 1363.

People v. Little (2012) 206 Cal.App.4th 1364, January 2013 LELR at p. 1. A “for sale” open house is an inhabited dwelling for burglary purposes.

CRIMINAL THREATS – THREATENING PUBLIC OFFICIALS

People v. Avila (2013) 212 Cal.App.4th 819, September 2013 LELR at p. 10. Prisoner with no stated release date can be convicted of threatening a public official – PC 76. Criminal Threat – PC 422 – cases also listed and discussed.

DEADLY WEAPONS (see also Weapons, below)

People v. Pellecer (2013) 215 Cal.App.4th 508, July 2013 LELR at p. 10. A dirk or dagger carried inside a backpack is not “upon the person.” So it is not a violation of PC 21310 (formerly PC 12020, subd.(a)(4).

People v. Davis (2013) 214 Cal.App.4th 1322, June 2013 LELR at p. 7. A modified baseball bat can be a billy club (now PC 22210, formerly PC 12020). “Here, the bat had been modified in a way the jury could reasonably conclude made it more useful as a weapon: the holes in its handle could reasonably be seen to make it easier to grip, and the strap could make it easier to carry and to swing.” 214 Cal.App.4th at pp. 1328-1329.

DETENTION AND PAT DOWN

People v. Lindsey (2007) 148 Cal.App.4th 1390, October 2013 LELR Bonus at p. 18. An anonymous telephone call contemporaneously reporting dangerous conduct can justify a detention and pat down. In this case, caller described a man she had just seen shoot a gun in a public area.

In re Richard G. (2009) 173 Cal.App.4th 1252, May 2013 LELR at p. 18. OK to detain a suspect based upon an anonymous telephone call. OK to prosecute a suspect for crimes committed during even an unlawful detention. “An individual’s decision to commit a new and distinct crime, even if made during or immediately after an unlawful detention, is an intervening act sufficient to purge the ‘taint’ of a theoretical illegal detention.” 173 Cal.App.4th at p. 1262.

People v. Osborne (2009) 175 Cal.App.4th 1052, April 2013 Bonus at p. 1. OK to stop and frisk a suspected auto burglar. “It is reasonable for an officer to believe that a burglar may be armed with weapons, or tools such as knives and screwdrivers which could be used as weapons, and that a pat-down search is necessary for the officer’s safety.” 175 Cal.App.4th at pp. 1060-1061.

DISRUPTIVE DEFENDANT People v. Mayham (2013) 212 Cal.App.4th 847, December 2013 LELR at p. . Disruptive defendant may be removed from the courtroom even if no video or audio feed is available in the lockup.

Missouri v. McNeely (2013) 195 L Ed 2d 696, May 2013 LELR at p. 2. Officers must get a search warrant to draw blood from a routine DUI arrestee who refuses to submit to a blood alcohol test. “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” 185 L Ed 2d at p. 707.

Missouri v. McNeely (2013) 195 L Ed 2d 696, October 2013 LELR Extra at p. 1. Template for search warrant for forcibly taking a blood sample from a DUI arrestee who refuses to submit to a blood test is set forth.

DRUG DETECTING DOG USE

Florida v. Jardines (2013) 185 L Ed 2d 496, May 2013 LELR at p. 7. Officer cannot take a drug sniffing dog to the front door of a residence without a search warrant.

People v. Zavala (2013) 216 Cal.App.4th 242, October 2013 LELR at p. 15. Cellphone call records – and printouts thereof – maintained by the cellphone service provider are admissible in court as business records. Can show calls made between defendant and accomplices during a crime.

EXCESSIVE LOSS ENHANCEMENTS

Penal Code section 12022.6, June 2013 LELR at p. 20. PC 12022.6 sets forth enhanced penalties based upon loss suffered by victims. Any loss above $65,000 can result in an enhanced sentence from one year up to four years for a loss of $3,200,000 or more.

EXIGENT CIRCUMSTANCES ENTRY

United States v. Snipe (9th Cir. 2008) 515 F.3d 947, July 2013 LELR Bonus at p. 17. Anonymous and excited 911 call to “get the cops here now” and giving a street address justifies exigent circumstances entry into the residence at the address given. . “We will not impose a duty of inquiry on the police to separate a true cry for help from a less deserving call for attention because the delay may cost lives that could have been saved by an immediate police response. The possibility that immediate police action will prevent injury or death outweighs the inconvenience we suffer when the police interruptour ordinary routines in response to what turns out to be a non-emergency call.” 515 F.3d at pp. 953-954.

People v. Islas (2012) 210 Cal.App.4th 116, April 2013 LELR at p. 13. False imprisonment by intimidation is a felony. No express threats or weapons necessary.“An express or implied threat of harm does not require the use of a deadly weapon or an express verbal threat to do additional harm. Threats can be exhibited in a myriad number of ways, verbally and by conduct.” 210 Cal.App.4th at pp. 125-126.

FORGERY/FRAUD

People v. Dunbar (2012) 209 Cal.App.4th 114, May 2013 LELR at p. 14. Forged or altered entries with intent to defraud into “any book of records” of private and/or public corporations violates Penal Code section 71. This would be applicable in the case of dishonest employees changing records.

GANG CRIMES/ATTEMPTED MURDER

People v. Lisea (2013) 213 Cal.App.4th 408, June 2013 LELR at p. 14. An aider and abettor to a gang crime is a “principal” under the natural and probable consequences doctrine. Can be found guilty of attempted murder – or murder – committed by a fellow gang member during a fight between two gangs. . “The only requirement is that the aider and abettor intend to facilitate the target offense and that the offense ultimately committed is the natural and probable consequence of the target offense.” 213 Cal.App.4th at p. 416.

People v. Barba (2012) 211 Cal.App.4th 214, May 2013 LELR at p. 10. Presentation of a stolen check is chargeable both as forgery and as identity theft.

People v. Johnson (2012) 209 Cal.App.4th 800, March 2013 LELR at p. 2. Use of another’s identity to obtain goods, services, etc., is identity theft. No intent to defraud and no loss to victim need be shown.

People v. Hagedorn (2005) 127 Cal.App.4th 734, March 2013 LELR Bonus at p. 1. Use of another’s identity to obtain goods, services, etc., is identity theft. No loss to victim or intent to defraud need by shown.

People v. Bell (2011) 197 Cal.App.4th 822, January 2013 LELR at p. 16. Apartment rental under a false name and non-payment of rent is identity theft and grand theft.

KIDNAPPING

People v. Robertson (2012) 208 Cal.App.4th 965, April 2013 LELR at p. 2. Short distance movement – within the confines of a garage – and increased risk of harm supports a conviction for kidnapping for rape – PC 209. Numerous other aggravated kidnapping cases discussed.

MIRANDA/CONFESSIONS

Lujan v. Garcia (9th Cir. 2013) 734 F.3d 917, December 2013 LELR at p. 8. Do not give a Miranda admonition by memory. Read it off a card.

Salinas v. Texas (2013) 186 L Ed 2d 376, July 2013 LELR at p. 2. Silence in response to questions suggestive of guilt in a non-custodial setting is admissible in court as consciousness of guilt. Officers should make note of questions which a suspect does not answer.

Cunningham v. Wong (9th Cir. 2013) 704 F.3d 1143, July 2013 LELR at p. 6. A suspect can withdraw his invocation of his Miranda rights and be questioned by officers. Suspect must waive rights previously invoked.

People v. Williams (2013) 56 Cal.4th 165, June 2013 LELR at p. 10. “Booking questions exception” applied. Miranda does not apply to routine booking questions. Statements made in response to routine booking questions can be admissible in court. Custodial facility intake officers can also ask questions to clarify statements made by or questions asked by prisoners. Answers admissible in court.

People v. Franzen (2012) 210 Cal.App.4th 1193, March 2013 LELR at p. 6. Questions asked to clarify a suspect’s volunteered remarks are not interrogation. Miranda admonition is not required. If an arrestee suddenly says, “I wish I hadn’t done it,” and the officer to whom he is speaking responds, “Done what?,” the prisoner has hardlybeen interrogated as most people would understand that term, even if it would appear on reflection that he was probably referring to the conduct that got him arrested. . . . The officer is simply giving a normal response to the arrestee’s conversational opening. This is not interrogation as commonly understood or as contemplated by [Miranda]. 210 Cal.App.4th at p. 1203.

People v. Lisea (2013) 213 Cal.App.4th 408, June 2013 LELR at p. 14. An aider and abettor to a gang crime is a “principal” under the natural and probable consequences doctrine. Can be found guilty of attempted murder – or murder – committed by a fellow gang member during a fight between two gangs. “The only requirement is that the aider and abettor intend to facilitate the target offense and that the offense ultimately committed is the natural and probable consequence of the target offense.” 213 Cal.App.4th at p. 416.

People v. Baker-Riley (2012) 207 Cal.App.4th 631, February 2013 LELR at p. 13. A robber can be convicted of the murder of his accomplice when the robbery victim fights back and kills the accomplice. Several “provocative act murder doctrine” scenarios set forth.

POLICE USE OF DEADLY FORCE

Gonzalez v. City of Anaheim (9th Cir. 2013) 715 F.3d 766, September 2013 LELR at p. 15. OK to shoot a fleeing motorist endangering an officer. In this case, an officer was sitting sideways in the front passenger seat as the driver began to speed away. Use of deadly force by officers discussed.

Brosseau v. Haugen (2004) 160 L Ed 2d 583, September 2013 LELR Bonus at p. 20. OK for an officer to shoot a dangerous fleeing motorist in the back. In this case, the officer was outside the car as the defendant began to speed off with numerous other vehicles and persons nearby. “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” 160 L Ed 2d at p. 589

ROBBERY

People v. Bradford (2010) 187 Cal.App.4th 1345, August 2013 LELE Bonus at p.21. Shoplifter who fights with mall security guards while trying to flee with stolen property can be charged with robbery of the guards. Each guard is a separate victim. “Estes robbery” explained. “A defendant who does not use force or fear in the initial taking ofthe property may nonetheless be guilty of robbery if he uses force or fear to retain it or carry it away in the victim’s presence.” 187 Cal.App.4th at p. 1349.

People v. Hodges (2013) 213 Cal.App.4th 531, August 2013 LELE at p. 13. “Estes robbery” does not apply if stolen gods are dropped or surrendered before force is used to escape. “Estes robbery” applies only if thief is still in possession of the stolen goods when he uses force or fear against the owner – including store clerks and security guards – of the stolen property.

People v. Ermi (2013) 216 Cal.App.4th 277, October 2013 LELR at p. 3. A probation search includes all areas and items over which the probationer has joint or exclusive access or control. OK to search female’s purse since it was accessible to the male probationer.

United States v. McClendon (9th Cir. 2013) 713 F.3d 1211, September 2013 LELR at p. 2. A suspect is not “seized” – either by arrest or detention – until he is physically restrained or submits to authority. Evidence dropped prior to the seizure of a suspect is lawfully seized. Whether officers had sufficient grounds to detain or arrest suspect prior to his dropping evidence is irrelevant.

United States v. King (9th Cir. 2013) 711 F.3d 986, September 2013 LELR at p. 7. No suspicion whatsoever is necessary to conduct a search pursuant to a probation consent search condition.. “A suspicionless search, conducted pursuant to a suspicionless-search condition of a probationer’s agreement, does not violate the Fourth Amendment.” 711 F.3d at p. 991. Law is the same as to parole search condition searches.

United States v. Wahchumwah (9th Cir. 2013) 710 F.3d 862, June 2013 LELR at p. 5. It is OK for an undercover officer to use a concealed audio-visual recording device while within a suspect’s home in an undercover capacity.

Florida v. Jardines (2013) 185 L Ed 2d 496, May 2013 LELR at p. 7. Officer cannot take a drug sniffing dog to the front door of a residence without a search warrant.

People v. Nishi (2012) 207 Cal.App.4th 954, February 2013 LELR at p. 2. OK for officers to conduct a warrantless search of an illegal campsite on public land. Warrantless search of an illegal structure on a public sidewalk is lawful. Several related cases are discussed.

United States v. Decoud (9th Cir. 2006) 456 F.3d 996, February 2013 LELR Bonus at p. 23. Disclaimer of ownership negates standing to object to a search. “Although a briefcase is property in which one may have a Fourth Amendment interest, Decoud failsto appreciate that he gave up any expectation of privacy in the briefcase by unequivocally disclaiming ownership. . . . As a result, we reject his protestations against the search of the briefcase.” 456 Fed.3d. at pp. 1007- 1008.

Georgia v. Randolph (2006) 164 L Ed 2d 208, January 2013 LELR at p. 19. Consent search cannot be conducted if a co-tenant is present and objects. But there are exceptions.

SEARCH WARRANTS

United States v. Needham (9th Cir. 2013) 718 F.3d 1190, October 2013 LELR at p. 6. Affiant must state a factual basis for her opinion that child molesters commonly possess child pornography.

Bailey v. United States (2013) 185 L Ed 2d 19, April 2013 LELR at p. 17. OK to detain persons in the immediate vicinity of premises where a search warrant is being served – but not persons away from the immediate vicinity.

STATUTE OF LIMITATIONS

People v. Robinson (2010) 47 Cal.4th 1104, June 2013 LELR at p. 18. Filing charges against an unknown defendant solely by his or her DNA profile stops the running of the statute of limitations.

THEFT

People v. Bell (2011) 197 Cal.App.4th 822, January 2013 LELR at p. 16. Apartment rental under a false name and non-payment of rent is identity theft and grand theft.

TRAFFIC

People v. Harris (2012) 208 Cal.App.4th Supp. 1, April 2013 LELR at p. 7. HOV lane is a lane within the meaning of the Vehicle Code.

People v. Aznavoleh (2012) 210 Cal.App.4th 1181, April 2013 LELR at p. 9. A street racer who crashes and causes injury has committed assault with a deadly weapon. “The primary issue in this case is whether a driver who deliberately races through a red light at a busy intersection and collides with another vehicle, causing injury to another, can be convicted of assault with a deadly weapon. The answer is yes.” 210 Cal..App.4th at p. 1183.

VANDALISM

People v. Carrasco (2012) 209 Cal.App.4th 715, February 2013 LELR at p. 7. OK to aggregate all acts committed pursuant to a single general impulse or plan to determine value of damages. $400 or more is felony vandalism.

VEHICLE STOPS AND SEARCHES

United States v. Scott (9th Cir. 2012) 705 F.3d 410, October 2013 LELR at p. 2. An immediate or delayed warrantless search on probable cause to believe evidence is in a vehicle is lawful.

United States v. Turvin (9th Cir. 2008) 517 F.3d 1097, June 2013 LELR at p. 19. At a traffic stop, it is OK for officers to ask questions unrelated to the traffic stop. “Mere police questioning does not constitute a seizure and thus no reasonable suspicion is required to justify questioning that does not prolong an initially lawful stop.” 517 F.3d at pg. 1100. “Questioning that does not appreciably extend the duration of a traffic stop is reasonable . . .”“Officers are not required to move at top speed when executing a lawful traffic stop.” 517 F.3d at p. 1102.

People v. Little (2012) 206 Cal.App.4th 1364, January 2013 LELR at p. 1. OK for officers to stop and search a car where the car and its occupants match the description given by a recent burglary victim.

People v. Schmitz (2012) 55 Cal.4th 909, January 2013 LELR at p. 11. Police may search passenger compartment of a vehicle is a passenger is a parolee or a probationer with a search condition.

VENUE

People v. Chavarria (2013) 213 Cal.App.4th 1364, October 2013 LELR at p.11. Multicounty crime can be prosecuted in any county in which the crime or an act preparatory to the crime took place, including a telephone call to set up a drug buy. Can file charges in the county from which the call was made, in county where the call was answered or in the county where the actual drug sale took place.

VEHICLE STOPS AND SEARCHES

People v. Corrales (2013) 213 Cal.App.4th 696, June 2013 LELR at p. 2. OK to traffic stop a car based upon a reasonable suspicion that the driver is texting.

People v. Nguyen (2013) 212 Cal.App.4th 1311, July 2013 LELR at p. 12. Possession of parts necessary to make an AK-47 is attempted assembly and attempted possession of an assault weapon – now PC 30600 and PC 30605.

INDEX TO
VOLUME 36 (2012) OF
THE LAW ENFORCEMENT
LEGAL REPORTER (LELR)

United
States v. Pope (9th Cir. 2012) 686 F.3d 1078, October 2012 LELR at p.
1. Search incident to arrest. OK to search on probable cause to arrest.
Need not say, "You are under arrest" prior to conducting the search.

People
v. Monzo (2012) 53 Cal.4th 880, June 2012 LELR at p. 14. Penal Code
section 246 shooting at an inhabited vehicle is committed when the shooter
is outside the vehicle even if the gun is inside the vehicle when it is
fired.

BURGLARY

People
v. Yarbrough (2012) 54 Cal.4th 889, September 2012 LELR at p. 14. Residence
balcony with a metal railing is an inhabited dwelling for the purposes of
the burglary stature. Entry onto the balcony to steal is a residential,
i.e., first degree, burglary.

People
v. Chavez (2012) 205 Cal.App.4th 1274, September 2012 LELR at p. 17.
A fenced yard is not a building for the purposes of the burglary statute.
Entering into a fenced yard is not a burglary.

Magness
v. Superior Court (2012) 54 Cal.4th 270, August 2012 LELR at p. 15.
Burglary requires an entry, however slight. So a crook who opened a garage
door by using a stolen remote control - but never actually entered the garage
- did not commit burglary.

People
v. Tuggle (2012) 203 Cal.App.4th 1071, June 2012 LELR at p. 7. A single
fingerprint can prove the defendant was at the crime scene, in this case
a burglary.

CONSENSUAL
ENCOUNTERS

Florida
v. Bostick (1991) 501 U.S. 419, March 2012 LELR Bonus at p. 1. Police
may approach persons in public places and ask potentially incriminating
questions and for a consent search.

We
have held that the Fourth Amendment permits police officers to approach
individuals at random in airport lobbies and other public places to ask
them questions and to request consent to search their luggage, so long as
a reasonable person would understand that he or she could refuse to cooperate.
501 U.S. at p. 431.

"Courtroom
Survival - The Officers Guide to Better Testimony."
October 2012 LELR at Bonus, pg. 1. Surviving cross-examination and living
with your report.

DETENTION/PAT
DOWN

California
v. Hodari D. (1991) 499 U.S. 621, December 2012 LELR at p. 3. Officer
may pursue a fleeing man. Fleeing man has not been detained or arrested
unless he is physically restrained by and under the control of an officer
or submits to the authority of an officer.

People
v. Dolly (2007) 40 Cal.4th 458, November 2012 LELR Bonus. An anonymous
phone tip of firearm use justifies the detention, patdown, and search of
a described suspect and his car.

Terry
v. Ohio (1968) 392 U.S. 1, May 2012 LELR at p. 1. Officer may stop and
frisk a suspect based upon reasonable suspicion that the suspect is involved
in criminal activity. This can include a "pat down" for weapons.
Probable cause to arrest is not necessary, only reasonable suspicion.

[A] police officer may, in appropriate circumstances and in an appropriate
manner, approach a person for purposes of investigating possibly criminal
behavior even though there is no probable cause to make an arrest. 392 U.S.
at p. 22.

The
officer need not be absolutely certain that the individual is armed; the
issue is whether a reasonably prudent man, in the circumstances, would be
warranted in the belief that his safety or that of others was in danger.
392 U.S. at p. 27.

FINGERPRINTS

People
v. Tuggle (2012) 203 Cal.App.4th 1071, June 2012 LELR at p. 7. A single
fingerprint can prove the defendant was at the crime scene, in this case
a burglary.

KIDNAPPING

People
v. Leavel (2012) 203 Cal.App.4th 823, October 2012 LELR at p. 15. Forced
movement of an occupant within the rooms of his or her own home can be kidnapping.

LYNCHING

In
re Maria D. (2011) 199 Cal.App.4th 109, April 2012 LELR at p. 16. Trying
to aid and arrestee's escape is attempted lynching even if the escape is
unsuccessful.

MIRANDA/CONFESSIONS

Listing
of 46 Miranda cases with brief summary of each. July 2012 LELR at p.
29 through p. 34.

People
v. Sauceda-Contreras (2012) 55 Cal.4th 203, October 2012 LELR at p.
10. Officer may ask suspect clarifying questions as to whether the suspect
is invoking his right to counsel.

People
v. Thomas (2012) 54 Cal.4th 908, September 2012 LELR at p. 1. Officer
may interview defendant who invoked his right to counsel but then initiates
conversation with the officer.

New
York v. Quarles (1984) 467 U.S. 656, August 2012 LELR at p. 1. Establishes
"public safety exception" to Miranda. "While life hangs
in the balance, there is no room to require admonitions concerning the right
to counsel and to remain silent."People v. Davis (2009)
46 Cal.4th 539, 591. See also Allen v. Roe, below.

[U]nder the public safety exception, Miranda warnings need not be given
when "police officers ask questions reasonably prompted by a concern
for the public safety." In order for the public safety exception to
apply, there must have been "an objectively reasonable need to protect
the police or the public from immediate danger." That is, the police
must reasonably believe that there is a serious likelihood of harm to the
public or fellow officers. 305 F.3d at p. 1050.

People
v. Mosley (1999) 73 Cal.App.4th 1081, July 2012 LELR at p. 1. "Custody"
for Miranda purposes is evaluated by a reasonable man standard and the degree
of confinement at the time of questioning. Would a "reasonable man"
in the suspect's position consider himself under arrest. Public safety and
rescue doctrine exceptions explained.

"A person has been 'seized' within the meaning of the Fourth Amendment
only if, in view of all the circumstances surrounding the incident, a reasonable
person would have believed he was not free to leave." 624 F.3d
at p. 1102.

"The
ultimate inquiry underlying the question of custody is simply whether there
was a formal arrest or restraint on freedom of movement of the degree associated
with a formal arrest." 624 F.3d at p. 1102.

"The
reasonable person test is an objective test, applied from the viewpoint
of an innocent person." 624 F.3d at p. 1103.

People
v. Huggins (2006) 38 Cal.4th 175, July 2012 LELR at p. 9. "Interrogation"
is express questioning or words or actions reasonably likely to elicit an
incriminating response. Informing the defendant of the charges against him
is not interrogation.

Berghuis
v. Thomkins (2010) 176 L Ed 2d 1098, July 2012 LELR at p. 12.
1. An express waiver is not necessary prior to interrogation.
2. A waiver will be implied by the suspect answering questions after being
informed of his rights and indicating he understands them. .
3. Invocation of rights must by unequivocal.
A suggested Miranda admonishment and implied waiver are included in this
summary.

Maryland
v. Shatzer (2010) 175 L Ed 2d 1045, July 2012 LELR at p. 17. Invocation
of right to counsel is not eternal. Prisoners can be interrogated even though
they invoked their right to counsel sometime in the past.

Howes
v. Fields (2012) 182 L Ed 2d 17, July 2012 LELR at p. 21. Jail and prison
inmates are not in custody for Miranda purposes unless their degree of confinement
is increased prior to interrogation.

Montejo
v. Louisana (2009) 173 L Ed 2d 955, July 2012 LELR at p. 25. OK for
officers to seek to interview a defendant who has been arraigned and has
an attorney.

People
v. Bowman (2011) 202 Cal.App.4th 353, June 2012 LELR at p. 4. Adoptive
admissions by not answering questions after a Miranda waiver are admissible
in court. Q: "Did you shoot Joe?" A: (no response). Failure to
answer is considered an adoptive admission to the shooting.

If a person is accused to having committed a crime, under circumstances
which fairly afford him an opportunity to hear, understand, and to reply,
. . . and he fails to speak, or he makes an evasive or equivocal reply,
both the accusatory statement and the fact of silence or equivocation may
be offered as an implied or adoptive admission of guilt. 202 Cal.App.4th
at p. 365.

Bobby
v. Dixon (2011) 181 L Ed 2d 328, May 2012 LELR at p. 7. If suspect is
not in custody, no Miranda admonishment is necessary. Also, it is OK for
officers to suggest to a suspect that he confess before his accomplice does
so.

People
v. Nelson (2012) 53 Cal.4th 367, May 2012 LELR at p. 10. Invocation
of Miranda rights must be unequivocal. A suspect's request to speak to his
mother is not an invocation of the right to remain silent or the right to
counsel.

Sessoms
v. Runnels (9th Cir. 2011) 650 F.3d 1276, April 2012 LELR at p. 1. Invocation
of Miranda rights must be unequivocal. Officers need not ask questions to
clarify equivocal statements regarding an attorney. In this case, the suspect
told officers that his father told him to ask the police for an attorney.
A 9th Circuit three judge panel, in a 2-1 opinion, said this was not an
unequivocal invocation of right to counsel But this case was reheard by
a full panel of the 9th Circuit and it ruled, 6 to 5, that the suspect's
statement that his father told him to ask the police for a lawyer was an
invocation of his right to counsel. The new case citation, which renders
the prior opinion null and void, is Sessoms v. Runnels (9th Cir.
2012) 691 F. 3d 1054.

People
v. Pearson (2012) 53 Cal.4th 306, April 2012 LELR at p. 6. Miranda readvisement
is not necessary prior to a reasonably contemporaneous reinterview. "Readvisement
is unnecessary where the subsequent interrogation is reasonably contemporaneous
with the prior knowing and intelligent waiver." 53 Cal.4th at p. 316.
In this case, reinterview took place 27 hours after the initial advisement,
waiver and interview. A second interview without a Miranda readvisement
should be:
1. By the same officer.
2. In the same location.
3. Following the question, "do you remember your rights I told you
before?"
4. And try to have some contact with the suspect during the interval between
the first and second interview, even if about only trivial matters.

People
v. Enraca (2012) 53 Cal.4th 735, March 2012 LELR at p. 9. Volunteered
statements to a booking officer are admissible despite an earlier invocation
of the right to counsel.

Howes
v. Fields (2012) 182 L Ed 2d 17, March 2012 LELR at p. 13. OK to interview
a prison inmate without a Miranda advisement and waiver so long as the inmate's
degree of confinement is not increased.

MURDER

People
v. Gonzalez (2012) 54 Cal.4th 643, September 2012 at p. 8. Accomplice
A can be convicted of the murder of Accomplice B when the intended victim
fights back and kills Accomplice B.

People
v. Pham (2011) 192 Cal.App.4th 552, June LELR at p. 11. The crime of
attempted murder has been committed when defendant fires into a crowd even
though his intended victims were not in the crowd at the time.

People
v. Cravens (2012) 53 Cal.4th 500, May 2012 LELR at p. 1. A single "sucker
punch" resulting in the victim's death can be charged as murder. In
this case, the victim - who was intoxicated and unable to resist - was sucker
punched by the defendant, fell, hit his head, and died.

People
v. Canizalez (2011) 197 Cal.App.4th 832, January 2012 LELR at p. 15.
Fatal crash. All participants in a street race can be convicted of second
degree murder even if only one racer's car hit the victim's car.

POLLING
PLACE CRIMES

Elections
Code sections 18000 to 18578. The Elections Code sets forth many offenses
that might be committed on election day at a polling place. November 2012
LELR at p. 1.

SCHOOL SECURITY
OFFICERS

In
re M.M. (2012) 54 Cal.4th 530, August 2012 LELR at p. 23. A school security
officer is a public officer per PC 148(a)(1). Resisting a school security
officer can be charged as a violation of PC 148(a)(1).

People
v. Torres (2012) 205 Cal.App.4th 989, August 2012 LELR at p. 19. No
exigent circumstances entry into a residence based solely upon the odor
of burning marijuana at the front door.

United
States v. Bolivar (9th Cir. 2012) 670 F.3d 1091, June 2012 LELR at p.
1. Probation consent search. OK to search a backpack on reasonable suspicion
that probationer with a search condition has access to it. This case involved
the search of a backpack found in the residence of a probationer who had
a roommate. Court found reasonable suspicion to believe probationer had
access to the backpack.

People
v. Smith (2002) 95 Cal.App.4th 912, June 2012 LELR Bonus at p. 19. Probation
consent search of items under the joint control of a probationer (with a
search condition) and another person is valid.

People
v. Pleasant (2004) 123 Cal.App.4th 194, June 2012 LELR at p. 22. Probation
consent search includes areas of joint access of probationer and another.
In this case, the defendant's mother, who had a probation search condition
herself, had access into defendant's (her son's) bedroom where a gun was
found under the bed.

United
States v. Russell (9th Cir. 2012) 664 F.3d 1279, April 2012 LELR. A
consent search of a person includes a pat down of the groin area. When a
pat down is being done pursuant to the suspect's consent a male officer
should pat down males and a female officer should pat down females. However,
if a pat down is being conducted based upon a reasonable suspicion that
the suspect is carrying a weapon, then a pat down by an officer of the opposite
gender would be permissible. Still, it is always preferable to have pat
downs conducted by an officer of the same gender as the suspect.

Ryburn
v. Huff (2012) 181 L Ed 2d 966, March 2012 LELR at p. 1. An exigent
circumstances entry was valid based upon a reasonable belief that a woman
was about to arm herself with a gun. Officers had been talking to her on
the porch of her home about her son threatening to shoot up a school. When
they asked her if she had any guns in her home she suddenly turned and entered
her home. Officers were fearful she was about to arm herself with a gun.
The U.S. Supreme Court, in a unanimous opinion, approved the exigent circumstances
entry into the home under these facts. The fact that she had a right to
enter her own home did not negate the officers' reasonable fear that she
was about to arm herself. "There are many circumstances in which
lawful conduct may portend imminent violence." 181 L Ed 2d at p.
972.

People
v. Bolter (2011) 199 Cal.App.4th 761, March 2012 LELR at p. 5. Warrantless
search of jail visitor's locker is valid. "Defendant did not have a
reasonable expectation of privacy with respect to possessions he placed
in a locker on the jail property. . . . [Visitors] who store goods in lockers
on jail property should have no expectation of privacy with respect to those
lockers." 199 Cal.App.4th at p. 770.

United
States v. Stanley (9th Cir. 2011) 653 F.3d 946, January 2012 LELR at
p. 8. Co-owner in possession of a computer can give police consent to access
the contents of the computer.

People
v. Downey (2011) 198 Cal.App.4th 652, January 2012 LELR at p. 11. Probation
consent search. Officers need reasonable grounds to believe a probationer
lives at a residence in order to enter it to conduct a probation consent
search.

People
v. Valencia (2012) 201 Cal.App.4th 922, October 2012 LELR at p. 5 . Consent
to search given to first officer applies to second officer as well.

SEARCH WARRANTS

People
v. Rangel (2012) 206 Cal.App.4th 1310, November 2012 LELR at p. 3. OK
for officers to seize and access a cell phone during the service of a search
warrant.

People
v. Stanley (2012) 54 Cal.4th 734, November 2012 LELR at p. 10. Sentencing/Restitution.
OK for a sentencing judge to order restitution in the amount needed to repair
damaged property even if in excess of the pre-damage value.

People
v. Solis (2012) 206 Cal.App.4th 1210, November 2012 LELR at p. 13. OK
for a judge to order consecutive sentences for multiple rapes of the same
victim in a single incident.

People
v. Correa (2012) 54 Cal.4th 331, September 2012 LELR at p. 12. Multiple
convictions for the same crime can be punished separately and consecutively.

SEX
CRIMES

People
v. Solis (2012) 206 Cal.App.4th 1210, November 2012 LELR at p. 13. OK
for a judge to impose consecutive sentences for multiple rapes of the same
victim in a single incident.

People
v. Cornett (2012) 53 Cal.4th 1261, June 2012 LELR at p. 17. Sex crimes
against children "10 years of age or younger" means under 11 years
of age. "The ordinary meaning of the phrase "10 years of age"
is a child who has reached his or her 10th birthday but who has not yet
reached his or her 11th birthday." 53 Cal.4th at pp. 1265-1266.

TRAFFIC
OFFENSES

People
v. Nelson (2012) 200 Cal.App.4th 1083, May 2012 LELR at p. 5. Using
a cell phone while stopped at a red light is a Vehicle Code section 23123
violation.

People
v. Canizalez (2011) 197 Cal.App.4th 832, January 2012 LELR at p. 15.
Fatal crash. All participants in a street race can be convicted of second
degree murder even if only one racer's car hit the victim's car.

VEHICLE
STOPS AND SEARCHES

People
v. Valencia (2012) 201 Cal.App.4th 922, October 2012 LELR at p. 5 .
Consent to search given to first officer applies to second officer as well.

People
v. Vibanco (2007) 151 Cal.App.4th 1, September 2012 Bonus at pg. 1.
OK to order driver and passengers out of a traffic stopped car, or to stay
in it, or to sit on the curb. Officers can control the driver and passengers
at a car stop.

People
v. Letner and Tobin (2010) 50 Cal.4th 99, April 2012 LELR at Bonus p.
1. OK for police to stop a car based upon a reasonable suspicion of criminal
activity even though there might be an innocent explanation for the suspicious
circumstances observed. This summary contains an extended discussion of
the caselaw regarding vehicle stops based upon suspicious circumstances.

United
States v. Jones (2012) 181 L Ed 2d 911, March 2012 at p. 17. The warrantless
installation and monitoring of a tracking device on a car is an unreasonable
search. Summary includes the procedure for obtaining a search warrant to
install a tracking device upon a vehicle.

People
v. Bennett (2012) 197 Cal.App.4th 907, January 2012 LELR at p. 5. OK
to stop a car driving away from the scene of a parking violation to issue
a cite for the violation.

United
States v. Williams (9th Cir. 2005) 419 F.3d 1029, January 2012 LELR
Bonus at p. 1. Vehicle stop. Officer can order existing occupant back into
the vehicle.

WEAPONS

Firearms
- Open Carry. Penal Code section 26400. November 2012 LELR at p. 16
and December 2012 LELR at p. 17. Effective January 1, 2013, the open carry
ban applies to long guns as well as handguns.

People
v. Clark (1996) 45 Cal.App.4th 1147, April 2012 LELR at p. 9. A firearm
is loaded when there is a cartridge within the firearm requiring no more
than operating the bolt or pulling back a slide to place the cartridge in
firing position. A firearm is not loaded when cartridges are stored in the
buttstock or in a magazine strapped to the outside of the firearm. The definition
of "loaded" can vary depending upon where the firearm is carried
- such as in a state office building versus on a public street.